Opinion
C.A. No. 98C-06-300-JOH.
Submitted: October 7, 1999.
Decided: January 21, 2000.
Upon Motion of Defendant for Summary Judgment — GRANTED
Stephen B. Potter, Esq. Stephen B. Potter and Associates, P.A. P.O. Box 514 Wilmington, DE 19899
Mary E. Sherlock, Esq. Brown, Shiels, Beauregard Chasanov P.O. Drawer F Dover, DE 19903
Counsel:
Plaintiff Brigitte C. Sellers was injured in an automobile accident on December 22, 1997 while occupying a vehicle owned by her mother. Defendant Colonial Insurance Company insured her mother's vehicle. Payments to Sellers have exhausted the PIP coverage provided by that policy.
Sellers now seeks further PIP coverage from Colonial, the same insurer as her mother's vehicle, but through a policy covering her own vehicle. That vehicle was not involved in this accident. Because of an anti-stacking exclusion in her own policy, Colonial has moved for summary judgment. She contends that it is not enforceable against her because she was never told of it when she purchased the policy and was not supplied with a copy of the policy before the accident. Delaware law does not base enforceability on these conditions. The Court, therefore, finds (1) the anti-stacking provisions enforceable and (2) that Sellers is not entitled to any PIP coverage from her own policy.
Colonial originally moved to dismiss Sellers' complaint. At oral argument on the motion, she conceded the validity, as she had to, the anti-stacking provision. But, she argued she had never received the policy containing the provision and it was never explained to her. The Court believed that there should be an opportunity for discovery on that issue. Despite that opportunity, not much was done and counsel have indicated there is no more that would or could be done to develop the record on this particular issue.
Gray v. Colonial Penn. Ins. Co., Del.Super., C.A. No. 78C-FE-16, Walsh, J. (March 21, 1979); Robinson v. Allstate, Del.Super., C.A. No. 91C-01-74, Bifferato, J. (August 17, 1992).
The record reveals an affidavit from her stating that she was never told of the anti-stacking provision when she purchased Colonial's coverage on June 1997. She swears she never received a copy of the policy. The record now includes Colonial's denial to her request for admission that it never delivered the policy to her.
While not extensive, these additional items shift Colonial's motion from one to dismiss to one for summary judgment. It is entitled to summary judgment, if there are no genuine issues of material fact and if it is entitled to judgment as a matter of law. The record, of course, must be viewed in a light most favorable to Sellers as the non-moving party.
Superior Court Civil Rule 12(c).
Schueler v. Martin, Del.Super., 674 A.2d 882, 885 (1996).
Billops v. Magness Constr. Co., Del.Supr., 391 A.2d 196, 197 (1978).
Based on these principles, it would seem Colonial's summary judgment motion would have to be denied. While, she concedes the validity of the anti-stacking provision, she disputes, however, its enforceability against her in this case. Her argument is based on her statement that she was not verbally told of it nor, she says, ever provided with a copy of the policy. Colonial does not refute the lack of verbal advice but does say it sent the policy to her. At first blush, these differences create a genuine issue of material fact. Precedent, however, shows these factual differences to be legally insignificant. Delivery of the policy to the insured is not a prerequisite to the enforceability of the anti-stacking provision.
Graham v. State Farm Mut. Auto Ins. Co., Del.Supr., 565 A.2d 908 (1989): Cassingham v. Nationwide Gen. Ins. Co., Del.Super., C.A. No. 90C-10-244, Bifferato, J. (November 8, 1991); Terra Nova Ins. Co., Ltd. v. Nanticoke Pines, Ltd., D.Del., 743 F. Supp. 293 (1990).
Sellers obtained her policy in June 1997. Colonial does not argue she failed to pay the insurance. The policy was, therefore, in effect for six months before she was injured in the December accident. In six months, if she had not received her policy, she had time to request it. If she made a claim for benefits arising out of an incident on her vehicle, Colonial would be hard pressed to deny coverage for non-delivery. Therefore, she receives both the potential benefits of coverage, as well as the limitations arising from exclusions.
Sellers offers an additional argument to escape the enforceability of the anti-stacking provision. She claims Colonial, or some agent, was required to verbally advise her that the provision was in the policy. She cites no Delaware authority for this contention. She does cite, however, a Utah case which indicates that failure to advise an insured of an exclusion can invalidate that exclusion. The reasoning and holding of the Utah Supreme Court has not been followed here. In fact, it has been expressly rejected. This Court sees no reason, nor is it in a position in any event, to reverse Delaware law. The absence of authority in Delaware in support of Sellers' contention further underscores the inapplicability of the Utah case.
Farmers Insurance Exchange v. Call, Utah Supr., 712 P.2d 231 (1985).
In sum, even acknowledging the existence of several factual differences, they are not of the quality to create genuine issues of material fact which would bar an award of summary judgment.
State Farm Mut. Auto. Ins. Co. v. Mundorf, Del.Supr., 659 A.2d 215, 217 (1995).
CONCLUSION
For the reasons stated herein, the motion for summary judgment of defendant Colonial Insurance Co. of California is GRANTED .IT IS SO ORDERED.
Sincerely,
Jerome O. Herlihy